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2001
Federal Preemption of State Tort Claims
Marin Roger Scordato
The Catholic University of America, Columbus School of Law
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Marin Roger Scordato, Federal Preemption of State Tort Claims, 35 U.C. DAVIS L. REV. 1 (2001).
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.I
U.C. DAVIS LAW REVIEW
VOLUME 35
NOVEMBER
2001
'
/
University
of
California
Davis
NUMBER 1
Federal Preemption of State Tort
Claims
Marin R. Scordato
TABLE OF CONTENTS
INTRODUCTION ....................................................
2
I. INTRODUCTION TO FEDERAL PREEMPTION ....................................
9
A. Sources of FederalPreemption ..................................
9
B. Categories of Federal Preemption................................
11
II. GEIER V. AMERICAN HONDA MOTOR COMPANY ................. 14
III. APPROACHES TO PREEMPTION JURISPRUDENCE ............................
20
A.
B.
C.
FederalPreemption: Statutory Interpretation vs. Federalism.......
20
Bright-line Rule Requiring Express Legislative Language ............
22
A PresumptionAgainst Preemption..............................
29
CON CLU SIO N ...................................................................
32
Visiting Professor of Law, University of Maryland School of Law, Professor of Law,
Southwestern University School of Law. B.A., Haverford College, J.D., University of
Virginia. I would like to thank Paula Monopoli for her very insightful comments and her
constant inspiration. I would also like to thank Stephen Lau for his excellent work. I am
grateful to the University of Maryland School of Law for its generous financial support of
this work. Finally, I wish to express my appreciation for the special contributions of Jasper
Lamar Crabb and Ned Racine, Esq.
University of California,Davis
[Vol. 35:1
INTRODUCTION
Since the middle of the twentieth century, with the rise of the modern
administrative state and our movement from a predominately common
law jurisprudence to the great age of statutes,' explosive growth in the
amount and variety of federal regulation has taken place. As federal law
making and federal regulation have increased in size and importance, so
too has the doctrine of federal preemption.
One legal scholar has
described preemption as "almost certainly the most frequently used
doctrine of constitutional law in practice.' 3
Befitting a constitutional law .doctrine of such stature, federal
preemption continues to draw the interest and resources of the highest
court in the land. During its 1999-2000 Term, the U.S. Supreme Court
accepted petitions for certiorari and decided four preemption cases, two
of which involved federal preemption of state tort claims. All four
decisions found in favor of federal preemption. One, Crosby v. National
Foreign Trade Council,4 is a unanimous affirmance of the First Circuit.5
6.
Another, United States v. Locke, is a unanimous reversal of a unanimous
7
Ninth Circuit panel decision. A third case, Norfolk Southern Railway Co.
v. Shanklin,8 is a seven-to-two reversal of a unanimous panel decision by
the Sixth Circuit,9 which had joined with Judge Posner and the Seventh
Circuit ° in rejecting a doctrine of expansive federal preemption known
as constructive approval.'
The fourth case, in many ways the most
intriguing, is Geier v. American Honda Motor Company," a five-to-four
GuIDo CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES 1 (1982).
2
One study, published in 1993, estimates that more than one-half of the federal
statutes that preempt state regulation have been enacted into law since 1970. David M.
O'Brien, The Supreme Court and Intergovernmental Relations: What Happened to Our
Federalism?, 9 J.L. & Pol. 609, 619 (1993).
' Stephen A. Gardbaum, The Nature of Preemption, 79 CORNELL L. REV. 767, 768 (1994).
- 530 U.S. 363 (2000), affig
sub nom. Nat'l Foreign Trade Council v. Natsios, 181 F.3d 38
(1st Cir. 1999), aff'g sub nom. Nat'l Foreign Trade Council v. Baker, 26 F. Supp. 2d 287(D.
Mass. 1998).
' Crosby, 530 U.S. at 388; Natsios, 181 F.3d at 38.
6
529 U.S. 89 (2000), rev'g sub nom. Int'l Ass'n of Indep. Tank Owners (Intertanko) v.
Locke, 148 F.3d 1053 (9th Cir. 1998), affg sub nom. Int'l Ass'n of Indep. Tank Owners
(Intertanko) v. Lowry, 947 F. Supp. 1484 (W.D. Wash. 1996).
United States v. Locke, 529 U.S. at 117; Intertanko v. Locke, 148 F.3d at 1069.
529 U.S. 344 (2000).
' Id. at 345, rev'g Shanklin v. Norfolk S. Ry. Co., 173 F.3d 386, 394-95 (6th Cir. 1999).
1" See Shots v. CSX Transp., Inc., 38 F.3d 304, 307 (7th Cir. 1994) (stating that federal
law preempts not only conflicting state law, but merely inconsistent state law as well).
" See infra note 22.
12 529 U.S. 861 (2000).
2001]
FederalPreemption of State Tort Claims
decision featuring a spirited split among members of the Court
regarding fundamental aspects of preemption analysis. 3
Among the interesting aspects of preemption as a legal doctrine is the
way that it seemingly cuts across traditional ideological lines in nontraditional ways.
For example, conservatives might generally be
expected to favor greater limitations on the regulatory power of the
federal government versus the states, as they do in the Commerce Clause
area.
This view pushes towards a narrow doctrine of federal
preemption. However, a conservative might also be expected to favor an
overall smaller amount of government regulation, and less stringent
regulatory requirements (at any level). Both of these tendencies would
typically push in the direction of a relatively broad preemption doctrine.
Similarly, conservatives are usually associated with a hostility towards
expansive tort liability and general support for tort reform. This
consideration too might recommend a doctrine that produces greater
federal foreclosure of state tort claims.
The converse of this analysis, of course, applies to a liberal perspective.
Historically, liberals have favored federal government authority and
displayed a lack of enthusiasm for expansive states' rights, suggesting an
attraction to relatively broad federal preemption. This view runs against
traditional liberal support for more aggressive government regulation of
potentially dangerous activities, including the expansion of tort liability
for those that cause harm. This preference for tort expansion would
normally resonate with a narrower view of the proper federal
preemption of state tort claims14
t
See infra text accompanying notes 52-85.
" It is difficult to know with any certainty before the fact whether the federal
preemption of a state law will result in a disposition of any future case that would be more
attractive to liberals or to conservatives. During periods of liberal control of the federal
legislature, preemption may possibly serve to constrain more conservative states from
effectively thwarting the purposes of liberal federal legislation. The converse is also true.
This feature of preemption jurisprudence, the inability of traditional political ideologies to
align themselves, ex ante, with an across-the-board support for either broad or narrow
federal preemption doctrine, can be illustrated merely by reference to the Supreme Court
cases in this area. For example, in Nash v. FloridaIndustrial Commission, 389 U.S. 235 (1967),
the Supreme Court held that a Florida law withholding unemployment compensation to a
worker because the worker had filed an unfair labor practice charge against her employer
was preempted by the National Labor Relations Act, despite the absence in the Act of an
express preemption provision. The Court reasoned that enforcement of the Florida law
would serve "to frustrate the purpose of Congress to leave people free to make charges of
unfair labor practices." Id. at 239; see also Livadas v. Bradshaw, 512 U.S. 107, 110 (1994)
(holding that National Labor Relations Act preempted California state labor policy in favor
of employers because California's policy significantly compromised certain employee
rights that federal Act granted); Hill v. Florida ex rel. Watson, 325 U.S. 538 (1945) (holding
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Indeed, one can find some strange bedfellows in this area.
For
example, it is probably fair to suppose that the Justices on the current
U.S. Supreme Court who are most resistant to expansive federal
preemption are Justices Stevens and Ginsburg. Justice Stevens authored
the dissent in the five-to-four Geier case, which Justice Ginsburg joined.15
Justice Ginsburg authored the dissenting opinion in the seven-to-two
Shanklin case, which only Justice Stevens joined." Moreover, in Geier, the
five-to-four decision from the 1999-2000 Term, the majority that found
for preemption was composed of Justice Breyer, who authored the
opinion, and Justices Rehnquist, O'Connor, Scalia, and Kennedy. 7 The
dissent consisted of Justice Stevens, who authored the dissenting
opinion, and Justices Souter, Thomas, and Ginsburg. 8 For even a casual
observer of the Supreme Court, that is an interesting, and unusual, split
among the Justices.' 9
Florida statute requiring business agents of labor unions to qualify for annual license
preempted as being in conflict with National Labor Relations Act goal of protecting
workers' freedom to select bargaining representatives). On the other end of the spectrum,
the Supreme Court found that Washington's state regulations, which aggressively
governed the operation of tankers in an effort to prevent environmental damage from
possible oil spills, were preempted by less stringent federal regulations. United States v.
Locke, 529 U.S. 89 (2000), rev'g sub nom. Int'l Ass'n of Indep. Tank Owners (Intertanko) v.
Locke, 148 F.3d 1053 (9th Cir. 1998), aff'g sub nom. Int'l Ass'n of Indep. Tank Owners
(Intertanko) v. Lowry, 947 F. Supp. 1484 (W.D. Wash. 1996); see infra note 41; see also Int'l
Paper Co. v. Ouellette, 479 U.S. 481, 500 (1987) (holding that Clean Water Act preempted
Vermont's state nuisance law with respect to out-of-state source of contamination); Ray v.
Atd. Richfield Co., 435 U.S. 151, 160-68 (1978) (holding that earlier version of Washington's
state tanker law was in part preempted by federal legislation).
," Geier, 529 U.S. at 886.
16 Norfolk S. Ry Co. v. Shanklin, 529 U.S. 344, 360 (2000) (Ginsburg, J., and Stevens,
J.,
dissenting). The dissent praised Judge Richard Posner's persuasive explanation in Shots v.
CSX Transp., Inc., 38 F.3d 304, 360-61 (7th Cir. 1994), that, while federal funding is
"necessary to trigger" federal preemption of state law, such funding is not dispositive of the
federal preemption issue. Id. at 361; see CSX Transp., Inc. v. Easterwood, 507 U.S. 658
(1993). The dissent's resistance to broad federal preemption of state laws was apparently
shared by the Reagan administration, which in October of 1987 issued an Executive Order
providing:
To the extent permitted by law, Executive departments and agencies shall
construe, in regulations and otherwise, a Federal statute to preempt State law
only when the statute contains an express preemption provision or there is some
other firm and palpable evidence compelling the conclusion that the Congress
intended preemption of State law, or when the exercise of State authority directly
conflicts with the exercise of Federal authority under the Federal statute....
Exec. Order No. 12,612, 52 Fed. Reg. 41,685 (Oct. 26, 1987).
" Geier, 529 U.S. at 863.
8 Id. at 886.
"9 Of all the cases decided during the Supreme Court's 1999-2000 Term, the Geier case
2001]
FederalPreemption of State Tort Claims
The issue of federal preemption is not only intellectually interesting, it
also carries enormous practical importance. Consider, for example, the
international and domestic ramifications of the four preemption-related
Supreme Court cases decided during the 1999-2000 Term. In Crosby v.
National Foreign Trade Council, the European Union and Japan lodged
formal complaints against the United States in the World Trade
Organization about a Massachusetts law that barred state entities from
buying goods or services from companies doing business with Burma.20
United States v. Locke involved the regulation of oil tankers in navigable
waters, much like the Exxon Valdez, and featured a formal diplomatic
expression of concern in the outcome of the case by thirteen ocean-going
nations, led by Denmark.21 Shanklin v. Norfolk Southern Railway Co.
is among only 10% of the cases in which Justices Scalia and Thomas did not vote for the
same result; 16% of the cases in which Justices Breyer and Souter did not vote for the same
result; and 47% of the cases in which Justices Ginsburg and Thomas voted in the same
manner. Voting Alignments on the Supreme Court, NAT'L L.J., Aug. 7, 2000, at A22, availableat
http: / /www.law.com/special/professionals/supremechart.html. See generally Richard G.
Wilkins et. al., Supreme Court Voting Behavior: 1997 Term, 26 HASTINGS CONST. L.Q. 533
(1999) (analyzing whether Supreme Court and its Justices have been more liberal or more
conservative than in past terms).
20 Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 382-83 (2000), aff'g sub nom.
Nat'l Foreign Trade Council v. Natsios, 181 F.3d 38 (1st Cir. 1999), aff'g sub nom. Nat'l
Foreign Trade Council v. Baker, 26 F. Supp. 2d 287 (D. Mass. 1998). In 1996, the
Commonwealth of Massachusetts passed a law barring state entities from buying goods or
services from companies doing business with Burma. Crosby, at 366-67. Just three months
after the passage of the Massachusetts law, Congress enacted a statute imposing certain
sanctions on Burma. Id. at 368. In April of 1998, the National Foreign Trade Council,
representing certain companies engaged in foreign trade that were prohibited from doing
business with Massachusetts pursuant to that Commonwealth's law regarding trade with
Burma, filed suit in federal court seeking an injunction against enforcement of the
Massachusetts law. Baker, 26 F. Supp. 2d at 287. The National Foreign Trade Council
argued, among other things, that the federal Act preempted the Massachusetts law. Id. at
291. The district court issued a permanent injunction. Id. at 293. The First Circuit Court of
Appeals affirmed, in part as the result of determining that the Federal Burma Act
preempted the Massachusetts law. Natsios, 181 F.3d at 71-77. The U.S. Supreme Court
unanimously affirmed the First Circuit, holding:
Because the state Act's provisions conflict with Congress's specific delegation to
the President of flexible discretion, with limitation of sanctions to a limited scope
of actions and actors, and with direction to develop a comprehensive,
multilateral strategy under the federal Act, it is preempted, and its application is
unconstitutional, under the Supremacy Clause.
Crosby, 530 U.S. at 388.
2 United States v. Locke, 529 U.S. 89 (2000), rev'g sub nom. Int'l Ass'n of Indep. Tank
Owners (Intertanko) v. Locke, 148 F.3d 1053 (9th Cir. 1998), affg sub nom. Int'l Ass'n of
Indep. Tank Owners (Intertanko) v. Lowry, 947 F. Supp. 1484 (W.D. Wash. 1996.) In Locke
(sometimes referred to as the "Intertanko Case"), the courts analyzed the interaction
between state and federal rules that both regulate the design, necessary equipment,
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[Vol. 35:1
involved the regulation of safety devices at railroad crossings, certainly
an important issue in practice when one considers that a train collides
with a car or truck somewhere in the United States, frequently killing or
badly injuring the vehicle's occupant, nearly ten times every day. 22 Geier
reporting requirements, and operation of oil tankers in Washington's state waters,
particularly Puget Sound. United States v. Locke, 529 U.S. at 94-95. Both state and federal
rules were enacted, and then subsequently amended and expanded upon, in response to
two crude-oil spills: 120,000 tons near England in 1967 by the supertanker Torrey Canyon,
and approximately 53 million gallons on the coast of Alaska in 1989 by the Exxon Valdez.
Id. at 94. In response to a challenge made by Intertanko, in which it claimed that federal
law preempted sixteen of Washington's conflicting state regulations, the district court
upheld the constitutionality of all sixteen regulations and granted Washington's motion for
summary judgment. Intertanko v. Lowry, 947 F. Supp. at 1500-01. The Ninth Circuit Court
of Appeals upheld the district court's holding with respect to fifteen of the sixteen
regulations, and reversed with respect to one. Intertanko v. Locke, 148 F.3d at 1069. The
U.S. Supreme Court, in a unanimous decision, reversed the Ninth Circuit, holding that
various federal laws preempted four of the sixteen regulations and remanding the case to
allow the Ninth Circuit or the District Court to create a fuller record and to consider further
the constitutional status of the remaining twelve regulations. United States v. Locke, 529
U.S. at 116-17. In its opinion, the Court indicated that state regulations, which are likely to
avoid conflict with concurrent federal regulations and thus avoid federal preemption,
"pose a minimal risk of innocent noncompliance, do not affect vessel operations outside the
jurisdiction, do not require adjustment of systemic aspects of the vessel, and do not impose
a substantial burden on the vessel's operation within the local jurisdiction itself." Id. at 112.
' Shanklin v. Norfolk S. Ry. Co., 529 U.S. 344 (2000); see NAT'L TRANSP. SAFETY BD.,
SAFETY STUDY, 1 SAFETY AT PASSIVE GRADE CROSSINGS, vii (adopted July 21, 1998) (reporting
that more than 4000 accidents per year have occurred at passive and active railroad
crossings). At the time of this study, there were approximately 158,000 public railroad
crossings in the United States. Id. at 4. Two-thirds of these crossings warn of their
presence and the impending approach of a train with only a set of traditional, stationary,
black-and-white, X-shaped signs displaying the words "RAILROAD CROSSING"
(commonly known in the industry as a "crossbuck"), a so-called "passive" warning. Id.
Sixty percent of all fatalities that occur at railroad crossings occur at crossings with only a
passive warning in place. Id. at vii & app. A, tbl. 2.
The facts underlying Shanklin illustrate the dangers of passive warnings. Early on
the morning of October 3, 1993, Dedra Shanklin's husband, Eddie, was killed in a collision
with a train at a railroad crossing in Tennessee. Shanklin, 529 U.S. at 350. Ms. Shanklin
subsequently filed a wrongful death claim against Norfolk Southern Railway Company,
the operator of the train. Ms. Shanklin's claim asserted five separate theories of negligence,
including Norfolk Southern's failure to install more than purely passive warning devices at
the railroad crossing. Shanklin v. Norfolk S. Rw. Co., 173 F.3d 386, 388 (1999). The district
court denied the defendant's motion for summary judgment, which was based on the
federal preemption of all of the plaintiffs claims. Id. The plaintiffs inadequate warning
claim, as well as two other claims, went to a jury. Id. The jury determined that Shanklin
had suffered $615,379 in damages, but that the deceased was thirty percent responsible for
the collision. Id. Thus, the district court entered a judgment for plaintiff in the amount of
$430,765.30. Id. Norfolk Southern appealed the district court's denial of its motion for
summary judgment, renewing its assertion that Shanklin's inadequate warning claim was
preempted by the Federal Railroad Safety Act, 49 U.S.C. § 20106 (formerly 45 U.S.C. § 434),
and the Highway Safety Act, 23 U.S.C. §§ 101-401 . Id. at 389. The Federal Railroad Safety
Act contains an express preemption provision that reads:
2001]
FederalPreemption of State Tort Claims
v. American Honda Motor Co. involved the regulation of air bags in
passenger cars, a safety device that is expected, if installed in all cars, to
save approximately 12,000 lives and prevent 100,000 serious physical
injuries each year.
Despite the gravity of the issues that turn on preemption analysis,
preemption jurisprudence is in a state of disarray. Indeed, there is a
widely held view that the preemption doctrine, at least as currently
applied by the courts, is not altogether clear or coherent. As Professor
Caleb Nelson recently commented:
Laws, regulations, and orders related to railroad safety shall be nationally
uniform to the extent practicable. A State may adopt or continue in force a law,
regulation, or order related to railroad safety until the Secretary of
Transportation prescribes a regulation or issues an order covering the subject
matter of the State requirement.
49 U.S.C. § 20106 (1994).
The U.S. Supreme Court had occasion prior to Shanklin to interpret the scope of this
express-preemption provision. In CSX Transportation,Inc. v. Easterwood, 507 U.S. 658 (1993),
involving facts very similar to those in Shanklin, the Supreme Court held that state law
negligence claims were not preempted by the Federal Railroad Safety Act. The Supreme
Court reasoned that federal preemption did not occur under the Act unless federal funds
were involved in the installation of the warning devices at the railroad crossing in question,
and that federal funds were not so involved in the particular crossing at issue in the
Easterwood case. Id. at 671-73. A split subsequently developed among the federal circuits
regarding the proper interpretation of the Easterwood decision. Courts in the Fifth, Eighth,
and Tenth Circuits held that the Federal Railroad Safety Act always preempts state law
claims based on inadequate warnings if the warnings at the railroad crossing in question
had been installed using federal funds, an approach that has come to be called
"constructive approval." See Armijo v. Atchison, Topeka & Santa Fe Rw. Co., 87 F.3d 1188,
1190 (10th Cir. 1996); Elrod v. Burlington N. R.R. Co., 68 F.3d 241, 244 (8th Cir. 1995);
Hester v. CSX Transp., Inc., 61 F.3d 382, 386 (5th Cir. 1995). In contrast, the Seventh Circuit
held that federal funding is a necessary, but not a sufficient, condition for federal
preemption, thereby rejecting the doctrine of constructive approval. Shots v. CSX Transp.,
Inc., 38 F.3d 304, 307 (7th Cir. 1994).
In Shanklin, the Sixth Circuit Court of Appeals embraced the approach of the
Seventh Circuit. Shanklin, 173 F.3d at 397. The Sixth Circuit found that federal funding
alone was insufficient to trigger preemption of Plaintiff Shanldin's inadequate-warning
claim. Id. The court also found that Norfolk Southern had failed to demonstrate the
"something more" that would have effectively triggered preemption. Id. Specifically, the
court indicated that "something more" would include evidence that the Federal Highway
Administration had actually, and not just constructively, approved the passive warnings at
the particular railroad crossing where the fatal collision took place. Id. The U.S. Supreme
Court reversed the Sixth Circuit. Shanklin, 529 U.S. at 359. The seven members of the
majority concluded that, "[o]nce the FHWA [the Federal Highway Administration]
approved the project and the signs were installed using federal funds, the federal standard
for adequacy displaced Tennessee statutory and common law addressing the same subject,
thereby preempting respondent's claim." Id.
3 Geier v. Am. Honda Motor Co., 529 U.S. 861 (2000).
" Motor Vehicles Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 35 (1983).
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[Vol. 35:1
Most commentators who write about preemption agree on at least
one thing: Modem preemption jurisprudence is a muddle. Indeed,
academic commentaries risk understating the extent of the muddle,
because they often focus on preemption decisions in one particular
area of law. Scholars bemoan the "chaos" caused by preemption
decisions in the realm of real-estate finance, or the "awful mess" of
preemption doctrine in certain parts of labor law, or the wildly
confused lower court case law on copyright preemption of state
unfair competition / misappropriation law.
Undoubtedly, this "muddle" is caused in part by the fact that
preemption analysis is so widely misunderstood and misapplied in the
federal courts. In this article, I argue that preemption analysis should be
approached as an ordinary exercise of statutory interpretation, not a
judicial determination of federalism. Specifically, Part I of this article
provides an introduction to federal preemption law, describing the
constitutional sources and categories of federal preemption. Part H
examines the Supreme Court's holding in Geier and analyzes the
doctrinal issues underlying the disagreement between the majority and
the dissent in that case. Part III critically examines two approaches that
courts have advanced to facilitate preemption analysis: a 'bright-line
rule" requiring express legislative language, and a presumption against
preemption. Part IV concludes by rejecting these approaches and
proposing instead that courts approach preemption as pure statutory
interpretation.
Caleb Nelson, Preemption, 86 VA. L. REV. 225, 232-33 (2000) (first quoting Frank S.
Alexander, Federal Intervention in Real Estate Finance: Preemption and Federal Common Law, 71
N.C. L. REV. 293, 340 (1993); second quoting Richard A. Bales, The Discord Between Collective
Bargainingand Individual Employment Rights: Theoretical Origins and a Proposed Solution, 77
B.U. L. REV. 687, 702 (1997); third quoting William Patry, The Enumerated Powers Doctrine
and Intellectual Property:An Imminent ConstitutionalCollision, 67 GEO. WASH. L. REV. 359, 368
n.51 (1999)) (footnotes omitted). A striking agreement exists among legal scholars on this
point. See, e.g., Viet D. Dinh, Reassessing the Law of Preemption,88 GEO. L.J. 2085, 2085 (2000)
("[N]otwithstanding its repeated claims to the contrary, the Supreme Court's numerous
preemption cases follow no predictable jurisprudential or analytical pattern."); David B.
Spence & Paula Murray, The Law, Economics, and Politics of FederalPreemption Jurisprudence:
A QuantitativeAnalysis, 87 CALIF. L. REV. 1125, 1128 (1999) ("The conflict [in preemption
decisions] is apparent in the relatively large number of splits among the circuits and the
inability of the Supreme Court to calm the preemption waters.").
2001]
FederalPreemptionof State Tort Claims
I. INTRODUCTION TO FEDERAL PREEMPTION
Federal preemption can be conceptualized as part of the answer to the
following larger question: what are the sources of limitations on state
governmental power that exist in the U.S. Constitution? In other words,
in what ways does the federal constitution affirmatively limit the power
of states? There are commonly thought to be six such sources of
limitation.
A. Sources of FederalPreemption
One constitutional source of limitation is a list of specifically
prohibited state governmental actions that appears in Article I, section
10. This section provides that "[no state shall.., enter into any treaty,
alliance, or confederation.., coin money... or grant any title of
nobility. ' 26 A second limitation, of course, is that states may not violate
fundamental individual rights granted to persons by the Constitution.27
Third, states may not constitutionally place an undue burden on
interstate commerce, even if the federal government has not acted in the
area or on the subject of the state regulation. For example, the Supreme
Court has struck down state laws that protect their in-state markets from
out-of-state competition, such as a state law that prohibits retailers in the
state from selling products that they purchased out-of-state for less than
U.S. CONST. art. I, § 10.
U.S. CONST. amend. XIV, § 1. The current standard for incorporation into the
Fourteenth Amendment of an individual right is set forth in Duncan v. Louisiana, 391 U.S.
145 (1968), reh'g denied, 392 U.S. 947 (1968):
2
'7
The test for determining whether a right extended by the Fifth and Sixth
Amendments with respect to federal criminal proceedings is also protected
against state action by the Fourteenth Amendment has been phrased in a variety
of ways in the opinions of this Court. The question has been asked whether a
right is among those "fundamental principles of liberty and justice which lie at
the base of all our civil and political institutions," Powell v. State of Alabama, 287
U.S. 45, 67 (1932); whether it is '"basic in our system of jurisprudence," In re Oliver,
333 U.S. 257, 273 (1948); and whether it is "a fundamental right, essential to a fair
trial," Gideon v. Wainwright, 372 U.S. 335, 343-344 (1963); Malloy v. Hogan, 378 U.S.
1, 6 (1964); Pointer v. State of Texas, 380 U.S. 400, 403 (1965). (parallel citations
omitted).
Id. at 148-49; see also Palko v. Connecticut, 302 U.S. 319, 325 (1937) (Cardozo, J.) (noting that
constitutional rights should not be incorporated into Fourteenth Amendment if, "they are
not of the very essence of a scheme of ordered liberty," and "[t]o abolish them is not to
violate a 'principle of justice so rooted in the traditions and conscience of our people as to
be ranked as fundamental ... ' (quoting Snyder v. Massachusetts, 291 U.S. 97, 105 (1934))).
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[Vol. 35:1
they sell the same products produced within the state. This is the socalled "Dormant Commerce Clause," arising from Article I, section 8,
clause 3.29
Fourth, states may not discriminate against out-of-state residents with
regard to constitutional rights or important economic activities. This
limitation originates from the Interstate Privileges and Immunities
Clause in Article IV, section 2, which states: "The Citizens of each State
shall be entitled to all Privileges and Immunities of Citizens in the
several States. ' 3 Applying this limitation, the U.S. Supreme Court struck
down a New Hampshire Supreme Court ruling limiting admission to the
New Hampshire bar to residents of New Hampshire."
Fifth, states may not tax or regulate the federal government. As first
established in the famous case of McCulloch v. Maryland,32 which held as
unconstitutional a discriminatory tax on the Bank of the United States,
neither states nor local governments may levy a tax on property owned
by the federal government unless Congress expressly consents.3
Finally, states may not enforce a state law that conflicts with a valid
federal law or regulation. This limitation arises from Article VI, clause 2,
of the Supremacy Clause, which states:
"
'
Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511 (1935).
U.S. CONST. Art. I, § 8, cl.3. See generally Martin H. Redish & Shane V. Nugent, The
Dormant Commerce Clause and the Constitutional Balance of Federalism, 1987 DuKE L.J. 569
(arguing that Dormant Commerce Clause jurisprudence is illegitimate exercise); Saul
Levmore, Interstate Exploitation and Judicial Intervention, 69 VA. L. REV. 563 (1983)
(suggesting that only exploitative state laws violate Dormant Commerce Clause while state
laws that merely interfere do not). Compare more critical approaches to the Dormant
Commerce Clause: Julian N. Eule, Laying the Dormant Commerce Clause to Rest, 91 YALE L.J.
425 (1982); Paul E. McGreal, The Flawed Economics of the Dormant Commerce Clause, 39 WM. &
MARY L. REV. 1191 (1998). Interestingly, Dormant Commerce Clause jurisprudence places
courts in an interpretive posture that is nearly the converse of that required in the
preemption area. In handling preemption issues, courts generally must interpret the intent
of Congress through close examination of the legislative actions that Congress has taken.
In the Dormant Commerce Clause cases, courts "face the fundamental dilemma of trying to
interpret the meaning of congressional silence." Michael A. Lawrence, Toward A More
Coherent Dormant Commerce Clause: A Proposed Unitary Framework, 21 HARV. J.L. & PUB.
POL'Y 395, 396 (1998).
'0 U.S. CONsT. Art. IV, § 2. See generally Jonathan D. Varat, State "Citizenship" and
InterstateEquality, 48 U.CHI.L.REV. 487 (1981) (proposing theory of state "citizenship" within
meaning of Privileges and Immunities Clause); Gary J.Simson, DiscriminationAgainst NonResidents and the Privileges and Immunities Clause of Article IV, 128 U. PA. L. REV. 379 (1979)
(arguing that original intent of Privileges and Immunities Clause necessitates more
rigorous application).
Supreme Court of New Hampshire v. Piper, 470 U.S. 274 (1985).
17 U.S. (4 Wheat.) 316 (1819).
Id. at 436.
9
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FederalPreemption of State Tort Claims
This Constitution, and the Laws of the United States which shall be
made in Pursuance thereof; and all Treaties made, or which shall be
made, under the Authority of the United States, shall be the
supreme law of the Land; and the Judges in every State shall be
bound thereby, any Thing in the Constitution or Laws of any State
to the Contrary notwithstanding.3
Thus, in such a case of conflict, the federal law supercedes, or preempts,
the state action.
B. Categoriesof FederalPreemption
Federal preemption can be productively categorized into three main
types. One type is field preemption, which occurs when the courts
determine that Congress has intended to fully occupy a particular area of
regulation to the exclusion of any state action in that same area.3 Thus,
under field preemption, a state law that was in no practical way in
conflict with an existing federal law would nevertheless be preempted if
it regulated conduct in an area which Congress had expressed an intent
to exclusively occupy.36
Sometimes, field preemption can be based on an explicit statement in a
federal act, such as the Employee Retirement Income Security Act of 1974
(ERISA), which includes a provision stating that ERISA "supersede[s]
any and all State laws insofar as they may now or hereafter relate to any
employee benefit plan. '3 7 At other times, courts have found field
preemption without the benefit of an explicit statement in federal law.
m U.S. CONST. art. VI, cl. 2; see Gade v. Nat'l Solid Waste Mgmt. Ass'n, 505 U.S. 88, 108
(1992) ('[U]nder the Supremacy Clause, from which our pre-emption doctrine is derived,
'any state law, however clearly within a State's acknowledged power, which interferes
with or is contrary to federal law, must yield'." (quoting Felder v. Casey, 487 U.S. 131, 138
(1988) (quoting Free v. Bland, 369 U.S. 663, 666 (1962)))). But cf. Gardbaum, supra note 3 at
767 (questioning link between federal preemption and Supremacy Clause).
See Fid. Fed. Say. & Loan Ass'n v. de la Cuesta, 458 U.S. 141 (1982).
Absent explicit pre-emptive language, Congress' intent to supercede state law
altogether may be inferred because "[tihe scheme of federal regulation may be so
pervasive as to make reasonable the inference that Congress left no room for the
States to supplement it," because "the Act of Congress may touch a field in which
the federal interest is so dominant that the federal system will be assumed to
preclude enforcement of state laws on the same subject," or because "the object
sought to be obtained by the federal law and the character of obligations
imposed by it may reveal the same purpose."
Id. at 153 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)).
' Hines v. Davidowitz, 312 U.S. 52, 66-67 (1941).
' 29 U.S.C. § 1144(a) (1994).
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Instead, in areas like foreign policy and immigration, the court would
find preemption based on such factors as the overall comprehensiveness
of the federal regulatory scheme, the existence and scope of jurisdiction
of a federal regulatory agency, and the historically national nature of the
matter being regulated."
A second type of preemption is known as express preemption, where
the superceding of the state law is based on an explicit statement
regarding preemption in the relevant legislation, even though that
statement may not set forth congressional intent for full field
preemption. 39 While there need not be any explicit statement at all
regarding intended preemption in a given federal act, if there is, it
usually comes in the form of one or both of two kinds of provisions. One
such kind of provision is commonly known as an express preemption
provision. The National Traffic and Motor Vehicles Safety Act of 1966,
which is the focus of Geier v. American Honda Motor Co.,4° contains an
express preemption provision which states:
Whenever a Federal motor vehicle safety standard established
under this subchapter is in effect, no State or political subdivision of
a State shall have any authority either to establish, or continue in
effect, with respect to any motor vehicle or item of motor vehicle
equipment, any safety standard applicable to the same aspect of
performance of such vehicle or item of equipment which is not
identical to the Federal standard.4'
A federal act may also contain what is known as a saving clause,
which will typically remove state common law claims from the force of
an express preemption provision. An example of a saving clause
' See, e.g., Pennsylvania v. Nelson, 350 U.S. 497 (1956) (field preemption in area of
sedition); Hines v. Davidowitz, 312 U.S. at 52 (field preemption in area of immigration). But
cf. Uphaus v. Wyman, 360 U.S. 72 (1959) (significantly narrowing holding in Pennsylvania v.
Nelson).
Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977) ("[W]hen Congress has
'unmistakably... ordained,' that its enactments alone are to regulate a part of commerce,
state laws regulating that aspect of commerce must fall. This result is compelled... [if]...
Congress's command is explicitly stated in the statute's language..." (quoting Fla. Lime &
Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142 (1963))).
- 529 U.S. 861 (2000).
"' Geier, 529 U.S. at 895 (Stevens, J., dissenting) (quoting National Traffic and Motor
Vehicle Safety Act of 1966, 15 U.S.C. § 1392(d)) (repealed 1994) (codified at 49 U.S.C. §
30103 (b)(1) (1994)). But see United States v. Locke, 529 U.S. 89 (2000), rev'g sub nom. Int'l
Ass'n of Indep. Tank Owners (Intertanko) v. Locke, 148 F.3d 1053 (9th Cir. 1998), affig sub
nom. Int'l Ass'n of Indep. Tank Owners (Intertanko) v. Lowry, 947 F. Supp. 1484 (W.D.
Wash. 1996) ("[W]e decline to give broad effect to saving clause where doing so would
upset the careful regulatory scheme established by federal law.").
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FederalPreemption of State Tort Claims
appears in the National Traffic and Motor Vehicles Safety Act of 1966:
"Compliance with any Federal motor vehicle safety standard issued
under this subchapter
42' does not exempt any person from any liability
under common law.
Finally, even in the absence of field preemption or any direct
statement of preemptive intent in the federal act, courts will determine
that a state law is preempted if it is found to actually conflict with an
existing federal law.43 A conflict can be found in cases where it would be
impossible for a person to comply with both the federal and the state
requirement. For example, in a 1913 Supreme Court case, a Wisconsin
statute required that certain containers of syrup be labeled in such a way
that the producer, in order to comply, would have to remove the product
labels that were required by Congress under the Pure Food and Drug
Act.44 Preemption based on an impossibility conflict might also arise,
hypothetically, where a manufacturer faces state tort claims alleging
injury caused by the proper deployment of federally required airbags.
Here, the manufacturer finds itself in a situation where it is impossible to
both comply with federal regulations requiring airbags and to protect
itself from state tort claims by plaintiffs injured by those airbags.
A conflict sufficient to support preemption can also be based on a
finding that the state law is an obstacle to the accomplishment of
Congress's goals in passing the legislation, or, as it is sometimes said, if
the objectives of the federal legislation would be frustrated by
enforcement of the state law." This form of preemption is sometimes
called "frustration-of-purposes" conflict preemption. 46 An example of
"frustration-of-purposes" preemption is a 1967 case in which the U.S.
Supreme Court held that the National Labor Relations Act, which
encouraged the filing of unfair labor practice charges with the National
Labor Relations Board, preempted a Florida law that denied
unemployment benefits to those who filed such charges.47 Another
I Geier, 529 U.S. at 895 (Stevens, J., dissenting) (quoting National Traffic and Motor
Vehicle Safety Act of 1966, 15 U.S.C. § 1397(k)) (repealed 1994) (codified at 49 U.S.C. §
30103 (e) (1994)).
' See, e.g., Gade v. Nat'l Solid Waste Mgmt. Ass'n, 505 U.S. 88, 98 (1992); California v.
ARC Am. Corp., 490 U.S. 93, 100-01 (1989).
McDermott v. Wisconsin, 228 U.S. 115 (1913). See also Fla. Lime & Avocado
Growers, Inc. v. Paul, 373 U.S. 132, 142-43 (1963) (recognizing that impossibility of dual
compliance requires federal preemption of state law).
' Hines v. Davidowitz, 312 U.S. 52,67 (1941).
' Geier, 529 U.S. at 873-74; Fla. Lime & Avocado Growers, 373 U.S. at 176; San Diego
Bldg. Trades Council (San Diego Unions) v. Garman, 359 U.S. 236,244 (1959).
" Nash v. Fla. Indus. Comm'n, 389 U.S. 235, 240 (1967).
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example is a 1971 case that involved an Arizona state law that suspended
the driver's licenses of those who did not pay judgments arising from
automobile accidents, even if the debt had been discharged in
bankruptcy. This law was preempted because one of the objectives of
federal bankruptcy law was to provide uniform national standards for
determining when a debt was discharged.48
The existence of any one of these three types of preemption - field,
express, or conflict - is sufficient to support a finding of preemption.
The categories, however, are not strictly exclusive. Thus, any given case
may involve more than one type of federal preemption. 49
Further, preemption doctrine extends far beyond the conventional
situation of conflict between federal law and state law. In addition to
statutes passed by Congress, duly authorized regulations promulgated
by a federal agency can also preempt state action on any one of these
three bases.'s Moreover, purely private tort actions based on state causes
of action can be preempted by federal statutes or federal regulations."
II.
GEIER V. AMERICAN HONDA MOTOR COMPANY
With these categories of preemption as background, it is interesting to
take a closer look at the five-to-four decision in Geier v. American Honda
Motor Co.,52 the most divisive of the four preemption-related decisions
issued by the Supreme Court during its 2000-2001 Term. Each of the
" Perez v. Campbell, 402 U.S. 637,649 (1971).
' See La. Pub. Serv. Comm'n v. FCC, 476 U.S. 355, 368-69 (1986) (listing instances in
which preemption occurs and noting that two types of preemption are alleged by
respondents).
' Fid. Fed. Svgs. & Loan Ass'n v. de la Cuesta, 458 U.S. 141, 153 (1982) ("Federal
regulations have no less pre-emptive effect than federal statutes."). See also La. Pub. Serv.
Comm'n, 476 U.S. at 369 ("Pre-emption may result not only from action taken by Congress
itself; a federal agency acting within the scope of its congressionally delegated authority
may pre-empt state regulation.").
"' See, e.g., Medtronic, Inc. v. Lohr, 518 U.S. 470, 502-03 (1996) (plurality opinion)
(declining to find federal statute at issue never preempts common law actions); id. at 503-05
(Breyer, J., concurring in part and concurring in judgment) (finding federal statute may
sometimes preempt tort action based on state law); id. at 509-12 (O'Connor, J., concurring in
part and dissenting in part) (finding federal statute preempts tort actions based on state
law when application of state law would impose any additional or different requirements
than those imposed by federal statute); CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664
(1993) (finding federal regulations regarding railroad safety may preempt similar state
laws, rules, regulations, orders, or standards); Cipollone v. Liggett Group, Inc., 505 U.S.
504, 548-49 (1992) (Scalia, J., concurring in judgment in part and dissenting in part)
(finding, contrary to majority opinion, that petitioner's tort actions were completely
preempted by federal statutes).
2 529 U.S. 861 (2000).
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FederalPreemptionof State Tort Claims
other three preemption decisions of the Term involves a relatively
5'
harmonious court, unanimous in two cases and seven-to-two in the
third. "s Two of these three cases show the Court adopting positions that
clearly operate to enlarge the scope of federal preemption.
Thus, a
Court that appears reasonably unified in a trend toward broader and
more expansive federal preemption doctrine suddenly runs into a set of
issues in Geier that leaves it sharply divided. In this section, I will
examine the court's holding in the Geier case and the issues that brought
out the fundamental doctrinal disagreements on the Court.
The Geier case began in 1992 when Alexis Geier hit a tree while driving
The Accord was
a 1987 Honda Accord and was seriously injured.
equipped with a manual shoulder and lap belt, which Alexis had
buckled, but did not have an airbag or any other passive restraint
system.57 Subsequently, Alexis and her parents sued American Honda
Motor Company in federal court under District of Columbia tort law,
claiming that American Honda had designed the Accord negligently and
defectively because it lacked a driver's side airbag. 5
Defendant American Honda moved to dismiss the case based on
federal preemption because, at the time in question, American Honda
had clearly complied with the then-existing version of Federal Motor
Vehicle Safety Standard 208, promulgated by the Department of
Transportation under the authority of the National Traffic and Motor
Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363 (2000), aff'g sub nom. Nat'l
Foreign Trade Council v. Natsios, 181 F.3d 38 (1st Cir. 1999), aff'g sub nom. Nat'l Foreign
Trade Council v. Baker, 26 F. Supp. 2d 287(D. Mass. 1998); United States v. Locke, 529 U.S.
89 (2000), rev'g sub nom. Int'l Ass'n of Indep. Tank Owners (Intertanko) v. Locke, 148 F.3d
1053 (9th Cir. 1998), aff'g sub nom. Int'l Ass'n of Indep. Tank Owners (Intertanko) v. Lowry,
947 F. Supp. 1484 (W.D. Wash. 1996).
' Norfolk S. Ry. Co. v. Shanklin, 529 U.S. 344 (2000). Justice O'Connor authored the
majority opinion, joined by Justices Rehnquist, Scalia, Kennedy, Souter, Thomas, and
Breyer. Id. at 346. Justice Ginsburg wrote the dissenting opinion, joined by Justice Stevens.
Id.
In Crosby v. National Foreign Trade Council, 530 U.S. at 363, the Court adopted a
relatively expansive definition of the scope of field preemption. Additionally, in Norfolk
Southern Railway Company v. Shanklin, 529 U.S. at 358-59, the Court accepted the doctrine of
constructive approval, at least under the Federal Railroad Safety Act of 1970. The Court
held that the federal funding of required safety devices alone, even in the absence of a
separate specific determination of adequacy of the devices by the Federal Highway
Administration, serves as a constructive determination of the safety devices' adequacy and
confers upon the requirement (that such safety devices be installed) preemptive effect over
a state tort claim. Id.
Geier, 529 U.S. at 865.
5 Id.
58 Id.
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Vehicle Safety Act of 1966.' 9 Standard 208 required auto manufacturers
6
0
to equip 10% of their 1987 model year cars with passive restraints.
The district court granted the defendant's motion and dismissed the
suit.6' The Court of Appeals for the District of Columbia affirmed the
district court's dismissal based on preemption, but on a somewhat
different basis than that relied upon by the district court.62 The plaintiff
then sought Supreme Court review, emphasizing that a number of states
had already held that Standard 208 did not preempt a suit of this sort.
The plaintiff also emphasized that, while all six federal courts of appeal
that had confronted the issue had found for preemption, few of those
courts agreed on the appropriate basis for such a result. 63 The Supreme
Court granted the plaintiffs petition for a writ of certiorari in the case64
and issued its decision on May 22, 2000. 65
The National Traffic and Motor Vehicle Safety Act of 1966, pursuant to
which Federal Motor Vehicle Safety Standard 208 was created, contained
both an express preemption provision and a saving clause. 6 Thus the
first issue dealt with by the majority in its opinion is the question of
whether the Act, by its terms, expressly preempts a state common law
tort action. 67 The majority determined that the state tort action is not
expressly preempted by the Act.6'
Id. See 49 C.F.R. § 571.208, S4.1.3 - S4.1.4 (1998) (repealing and codifying National
Traffic and Motor Vehicle Safety Act of 1966).
' Standard 208 required auto manufacturers to equip with passive restraints 25% of
their model year 1988 cars, then 40% of their model year 1989 cars, and then 100% of their
cars thereafter. 49 Fed. Reg. 28999 (July 17, 1984) (codified at 49 C.F.R. § 571.208, $4.1.3$4.1.4 (2000)).
6 Geier, 529 U.S. at 865.
62 The district court had granted Honda's motion for summary judgment on the basis
that the National Traffic and Motor Vehicles Safety Act of 1966 expressly preempted
Geier's action. Geier v. Am. Honda Motor Co., 166 F.3d 1236, 1237 (D.C. Cir. 1999). The
court of appeals was skeptical about Honda's express preemption claim, but nevertheless
affirmed the district court's grant of Honda's summary judgment motion because it
determined that, "a verdict in her [Geier's] favor would stand as an obstacle to the federal
government's chosen method of achieving the Act's safety objectives, and consequently, the
Act impliedly preempts her lawsuit." Id. at 1241.
63 Geier, 529 U.S. at 866.
Geier v. Am. Honda Motor Co., 527 U.S. 1063 (1999).
Geier, 529 U.S. at 861.
The express preemption provision appears at 49 U.S.C. § 30103 (b)(1) and supra in
text accompanying note 41. The saving clause appears at 49 U.S.C. § 30103 (e) and supra in
text accompanying note 42.
67 Geier,529 U.S. at 867-74.
61
Id. at 868.
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FederalPreemption of State Tort Claims
The majority then asks the following question: given that the state tort
action is not expressly preempted by the Act, could it still be preempted
on the basis of conflict preemption? 69 In other words, if Congress has
explicitly spoken on the issue of preemption by including an express
preemption provision or a saving clause, and that provision reflects a
congressional intent not to preempt state action, is it acceptable for the
court to find that the state action is nevertheless preempted due to
functional conflict with the federal statute? Or, alternatively, should the
determination of the will of Congress as expressed in the actual language
of the Act be the final word on the preemption issue?
The majority decided that it is acceptable for a court to find conflict
preemption even in the face of express preemption language which has
already been determined not to preempt a state tort action. Specifically,
the majority held that such conflict preemption may be based on either
the practical impossibility of compliance with both the federal and state
regulation or a conflict based on the state action being deemed to be an
obstacle to the achievement of federal objectives. 70 In this case, the tort
action brought by the Geiers, if decided in their favor, clearly would not
make it impossible for Honda to both comply with the federal standard
and avoid a similar future suit. Such a tort action would instead
encourage Honda to go beyond the federal requirement that airbags be
installed in a certain percentage of their cars and install airbags in all of
their cars, or at least in all of their cars sold in the District of Columbia.
So the only possible basis of preemption in this case was a finding by the
Court that the state tort action, if allowed to continue, would be an
unacceptable obstacle to the achievement of the goals or objectives of the
federal statute.
After a detailed analysis of the history of federal regulation of passive
restraint systems in automobiles,7' the majority determined that the
continued viability of a state tort action such as the one brought by the
Geiers would serve as an impermissible obstacle to the achievement of
federal objectives. The court thereby held that the tort action is in fact
preempted as being in conflict with the federal Act. n In essence, the
majority found that one important federal objective in the passage of the
0
Id. at 874.
n Id.
71 Id. at 874-81.
' Id. at 881. ("Because the rule of law for which petitioners contend would have stood
'as an obstacle to the accomplishment and execution of the important means-related
federal objectives that we have just discussed, it is pre-empted." (quoting Hines v.
Davidowitz, 312 U.S. 52, 67 (1941))).
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relevant regulations was the creation of a slow phase-in period for the
federal requirement of passive restraints in automobiles rather than an
immediate blanket mandate. The Court also found that the viability of a
state tort suit as the one at issue in this case could well frustrate this
purpose by allowing the states, through the threat of tort liability, to
effectively mandate the immediate blanket installation of airbags.73
The four dissenting Justices in this case agreed with the majority on
almost nothing. The dissent took issue with the majority's interpretation
of the express preemption provision,7 4 the majority's interpretation of the
saving clause, and even the majority's identification of the objectives of
the Act and Standard 208.76 Many of these disagreements are specific to
the National Traffic and Motor Vehicle Safety Act of 1966, Standard 208,
and the particular facts of the Geier case.
However, there are some vigorous disagreements between the
majority and the dissent that run deeper, that go to more fundamental
aspects of preemption jurisprudence. One disagreement is the dissent's
view, explicitly rejected by the majority, 77 that if a federal law contains a
saving clause, then the party seeking preemption should bear a special
burden in trying to establish preemption based on the state action being
in conflict with the goals and objectives of the federal law. 78 More
generally, the dissent seems to suggest that if the federal law contains
any express language regarding preemption - either a preemption
provision, a saving clause, or both - and the state action in question is
not preempted thereby on the basis of express preemption, then a special
burden should be borne by the party seeking preemption on the basis of
any theory of conflict preemption.79
Second, the dissent believes that it is inappropriate for the Court to
identify a federal objective sufficient to support conflict preemption on
76
Geier, 529 U.S. at 881.
Id. at 894-97 (Stevens, J., dissenting).
Id. at 897-99 (Stevens, J., dissenting).
Id. at 900-05 (Stevens, J., dissenting).
Id. at 869-74.
Id. at 899-900, n.16.
Thus, because there is a textual basis for concluding that Congress intended to
preserve the state law at issue, I think it entirely appropriate for the party
favoring pre-emption to bear a special burden in attempting to show that valid
federal purposes would be frustrated if that state law were not pre-empted.
Id. (Stevens, J., dissenting).
Id. at 898-900 (Stevens, J., dissenting). The majority identified and disagreed with
the dissent's view. Id. at 870-74.
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FederalPreemption of State Tort Claims
the basis of the federal regulatory agency's litigating position, the history
of federal regulation in the area, and commentary accompanying the
relevant administrative regulation, as occurred in this case.8 The dissent
suggested instead that in cases in which preemption is based upon an
administrative agency action rather than a congressional action, the
administrative action in question should not be granted preemptive
effect unless the agency clearly and specifically states such an intent after
formal notice-and-comment rulemaking.8' The majority flatly rejects this
suggested approach.82
Underlying the disagreement between the majority and the dissent on
both of these fairly significant doctrinal issues is a divergence of views
on an even larger issue: the appropriate scope of conflict preemption
based on frustration of federal objectives, often referred to as "obstacle"
or "frustration," branch of conflict preemption. The dissent clearly
believes that the scope of obstacle preemption outside the realm of
express preemption should be very narrow.
Both of the more specific doctrinal differences between the majority
and the dissent go to the dissent's desire to pull the preemption inquiry
back to the stated intent of the federal law, based on either the express
language of the congressional act or the formal statement of preemptive
intent the dissent would require of an administrative agency. In fact, the
majority at one point in its opinion stated that "the dissent's willingness
to impose a 'special burden' here stems ultimately from its view that
'frustration-of-purpose[s]' conflict pre-emption is a freewheeling,
'inadequately considered' doctrine that might well be 'eliminated. '"8 The
dissent, for its part, did not challenge this characterization, but instead
made an approving reference in a footnote to just such an idea."
Id. at 910-12 (Stevens, J., dissenting).
'
Id. at 908-10 (Stevens, J., dissenting).
Id. at 884-85.
lId. at 907-08. The Court wrote:
[T]he presumption [against preemption] serves as a limiting principle that
prevents federal judges from running amok with our potentially boundless (and
perhaps inadequately considered) doctrine of implied conflict pre-emption based
on frustration of purposes--i.e., that state law is pre-empted if it "stands as an
obstacle to the accomplishment and execution of the full purposes and objectives
of Congress."
Id. (Stevens, J., dissenting) (quoting Hines v. Davidowitz, 312 U.S. 52, 67 n.22 (1941)).
8' Geier, 529 U.S. at 874.
Id. at 908 n.22 (Stevens, J., dissenting).
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Thus, it appears that some number of the Justices of the current
Supreme Court would very likely support the formal abolition of the
frustration-of-purposes branch of conflict preemption altogether.
Moreover, at least four of the nine Justices would impose limitations on
the operation of the doctrine that would narrow its effect greatly,
perhaps to the point of practical elimination. This seems, then, like an
opportune time to reconsider preemption jurisprudence.
III.
APPROACHES TO PREEMPTION JURISPRUDENCE
Preemption jurisprudence has been hindered by the common
misperception that preemption necessarily involves a judicial
determination of federalism. In this section, I explain why courts should
approach preemption analysis not as a question of federalism, but as an
ordinary exercise of statutory interpretation, to which the ordinary rules
of interpretation apply. I also critically examine two preemption-specific
doctrines that courts have proposed to facilitate preemption analysis: a
bright-line requirement of express legislative intent and a presumption
against preemption.
A. Federal Preemption: Statutory Interpretationvs. Federalism
A consistently encountered refrain, almost a mantra, in the area of
preemption jurisprudence is the idea that preemption at its foundation is
about federalism, that it deals with critical aspects of the relationship
between federal and state government power. For example, in the Geier
case, Justice Stevens begins the second paragraph of his dissenting
opinion by saying flatly, "'This is a case about federalism'... that is,
about respect for 'the constitutional role of the States as sovereign
entities." '86 This same characterization of the subject appears throughout
the literature.
It is intuitively appealing to conceive of a body of legal doctrine
dealing with the foreclosure of state law actions by the existence of
federal law as inevitably deeply involved in the jurisprudence of federalstate relations. However, there is an important sense in which this
notion is simply not accurate. It is not accurate to say that court cases
dealing with preemption are about federalism in the same way that court
Id. at 886 (Stevens, J., dissenting) (first quoting Coleman v. Thompson, 501 U.S. 722,
726 (1991); second quoting Alden v. Maine, 527 U.S. 706, 713 (1999)). The petitioners made
the same statement in their brief. Brief for Petitioners at 17, Geier v. Am. Honda Motor Co.,
529 U.S. 861 (2000) (No. 98-1811) ("This case is about federalism and the separation of
powers.").
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FederalPreemption of State Tort Claims
cases dealing with the limits of federal government power pursuant to
the Commerce Clause are about federalism. The Constitution itself has
already clearly made and announced the fundamental judgment
regarding the relation of federal and state power: so long as the federal
government has the constitutional power to enact the law, then the
federal law is granted supremacy over conflicting state actions. r
Therefore, unlike jurisprudence in the Commerce Clause area,
preemption jurisprudence does not, in a direct way, involve the court in
establishing, or considering, fundamental limits on the nature and scope
of federal power. Because the Supremacy Clause itself contains no
independent limitation on the federal government's authority to preempt
state action,8 so long as Congress has the constitutional power to enact
the legislation, then it seems quite clear that the Supremacy Clause
grants to Congress the power to have that legislation preempt any
conflicting state action. Therefore, if it is clear that Congress intended for
the federal law to preempt, then the law does indeed preempt.
Thus, there are numerous instances of the Supreme Court, and lower
courts, stating that the process of determining appropriate preemption is
an inquiry into congessional intent. For example, in a 1996 case,
Metronic Inc. v. Lohr, the Supreme Court wrote that, "'[t]he purpose of
Congress is the ultimate touchstone' in every preemption case."90 Again,
there is little disagreement with this point throughout the academic
literature. 9'
Thus, if Congress is clear in expressing its intent, then there should be
no controversy over the preemptive scope of the federal law.
87
See supra text accompanying notes 26-34.
" U.S. CONST. art. VI, cl. 2.
- 518 U.S. 470 (1996).
' Id. at 485 (quoting Retail Clerks v. Schermerhorn, 375 U.S. 96, 103 (1963)).
" See, e.g., Stephen F. Befort & Christopher J. Kopka, The Sounds of Silence: The
Libertarian Ethos of ERISA Preemption, 52 FLA. L. REV. 1, 5 (2000) ("Preemption analysis,
therefore, is a matter of divining Congressional intent with respect to the particular federal
statute at issue."); The Supreme Court, 1999 Term - Leading Cases, 114 HARV. L. REV. 339, 343
(2000) ("Among the various forms of implied preemption Congress has unfettered choice,
for preemption is ultimately a question of congressional intent."); Samuel M. Bayard, Note,
Chihuahuas, Seventh Circuit Judges, and Movie Scripts, Oh My!: Copyright Preemption of
Contracts to Protect Ideas, 86 CORNELL L. REV. 603, 632 (2001) ("Accordingly, courts should
incorporate matters of copyright policy into their preemption analysis in order to reach a
result that better approximates congressional intent and vindicates the underlying
purposes of the Act."); Joshua A. T. Fairfield, Comment, ERISA Preemption and the Casefor a
Federal Common Law of Agency Governing Employer-Administrators,68 U. CHI. L. REV. 223,245
(2001) ("Whichever rule is adopted pursuant to the courts' authority to develop common
law interpreting ERISA must be specifically adapted to serve the congressional purposes
underlying that statute.").
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Correspondingly, if in ambiguous circumstances, a court theoretically
interprets congressional intent incorrectly, Congress always has the
power to correct the court and express its intent more clearly and
directly by amending the relevant statute. In this way, judicial
preemption analysis resembles ordinary statutory analysis more than
analysis in areas of constitutional adjudication, such as the commerce
clause and individual rights, where the judicial branch sets the basic
boundaries of governmental power and possesses the last word on the
issue.
From this perspective, one could view preemption analysis as being
like the default rules in contract law, such as rules allocating risk of loss
if goods are damaged or lost in transit and determining valid methods of
acceptance of an offer. These rules come into play only when the parties
to the contract fail to come to any agreement on a matter or fail to clearly
express their agreement. Preemption analysis is, in this sense, a default,
a background, or an "off-the-rack" rule, to be engaged and employed
only in the absence of clear Congressional intent on the issue. Viewing
preemption analysis from this perspective, are there any useful
approaches that might facilitate the judicial determination of
Congressional intent with respect to preemption?
B. Bright-line Rule Requiring Express Legislative Language
One possible approach is to urge the adoption of a fairly bright-line
rule in the federal preemption area. For instance, one might encourage
the Court to announce that the Supremacy Clause only provides
preemptive effect to those federal laws that clearly and unambiguously
set forth such an intent by Congress. In effect, this approach suggests
that courts recognize only express preemption as valid and require that
the expression of preemptive intent in the federal Act be clear and
unambiguous. 92 Far from being a radical suggestion, this is, in fact,
exactly the approach that the dissent in the Geier case strongly urges the
Court to adopt, at least in the case of administrative regulations
preempting state action in areas in which the states have historically
exercised power.
2 See, e.g., Betsy J. Grey, Make Congress Speak Clearly: Federal Preemption of State Tort
Remedies, 77 B.U. L. REV. 559, 607-18 (1997). See generally William N. Eskridge, Jr. & Philip
P. Frikey, Quasi-ConstitutionalLaw: Clear Statement Rules as Constitutional Lawmaking, 45
VAND. L. REV. 593 (1992) (outlining different areas where Supreme Court requires clear
statement of congressional intent).
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In a sense, this approach to preemption would, analogous to "off-therack" contract law doctrine, and in recognition of the Constitution
creating a federal system, simply adopt concurrent federal and state
regulation as the background default. Under this approach, the court
would interpret a federal act as not preempting state regulation of the
same activity unless the federal act clearly and unambiguously provides
for such preemption. At least six plausible arguments exist to support
such a judicial approach to preemption.
First, such an approach to preemption is appropriate given that the
speaker on whom the burden of clear expression is placed, either
Congress or a federal administrative agency, is a very sophisticated actor
with deep expertise and experience in the drafting of legislation and
regulations. Thus, unlike a consumer in a sales transaction, or
corporations contracting for reasonably routine business with
standardized forms, it would be appropriate to expect the party
responsible for drafting the relevant language in these circumstances to
be aware of the existence of the clear and unambiguous expression
requirement. In addition, it would be appropriate to expect the drafting
party to possess the resources and the expertise to comply with the
requirement if it desired the legislation or regulation at issue to carry
preemptive effect.
Second, this approach to preemption compels careful deliberation on
the part of the drafter. As a policy matter, it is desirable to encourage the
federal actor, either Congress or an administrative agency, to explicitly
consider the desired preemptive effect of an act or regulation prior to its
adoption.
Third, the process of drafting express language requiring preemption
promotes legislative accountability. The process by which the federal
actors produce the relevant preemption language and the procedure for
its enactment are open and public and as responsive to broad political
sentiment as is available in our current system. Certainly, that process is
more responsive to democratic pressures than the process of litigation
that produces judicial branch interpretations of a federal law's
preemptive effect. This observation would be especially true if the
courts adopt the Geier dissenters' suggestion to limit preemptive effect to
only those agency actions that have satisfied notice-and-hearing
requirements. Thus, by adopting a bright-line rule of interpretation,
Congress would be encouraged to speak clearly regarding the intended
preemptive effect of any legislation that it passes. Congress would
thereby stand to account politically for cases in which safety or
environmental federal requirements preempt more rigorous state
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requirements or foreclose the possibility of an injured person recovering
compensation in a state court action.
Fourth, the bright-line approach will give the community regulated by
the federal legislation a greater role in identifying and resolving
problematic preemption laws. It is inevitable that the federal actor will
draft defective regulation or legislation - for example, by crafting
preemption provisions that end up by their terms permitting state action
that makes it impossible for a person to comply with both the state and
the federal requirements. In these situations, the regulated community
itself will have a strong incentive to bring the matter to the attention of
the federal actor and seek a correction. In addition, the regulated
community is arguably in the best position to identify such conflicts at
an early stage and bring them vigorously to the attention of the federal
actor. Thus, one might not expect practically significant conflicts
between federal law and state law that were unanticipated and
unwanted by the federal actor to exist for very long. Certainly one could
expect such conflicts to exist for a much shorter period than they would
if their correction was dependent upon the final judgment of the judicial
branch through litigation. Moreover, since the appropriate response
under this bright-line interpretive rule to such conflicts is amendment of
the express preemption language in the federal act, one could reasonably
expect that the resolution of such conflicts might be more broadly
applicable than the product of litigation between discrete parties.
Fifth, the bright-line approach creates stability and consistency.
Because a bright-line doctrinal approach could be expected to be far
more predictable in its results than the current jurisprudence, it could be
expected to generate much greater beneficial reliance on the part of the
regulated community, state legislatures, state administrative agencies,
and potential tort claimants. Sixth, and finally, this approach will
benefit the perpetually overwhelmed federal dockets. As a result of the
much greater predictability of a bright-line rule, it could be expected to
reduce dramatically the amount of litigation in this area.
Taken together, these six arguments constitute a substantial case for at
least serious consideration of a rule conditioning preemption on a clear
and unambiguous express statement of such intent in the federal act.
Given the benefits of this rule, is it possible to identify any good reasons
not to adopt such an approach? It is, and there are at least five such
reasons.
The first reason begins with an appreciation that clarity is not so easy
to achieve when drafting preemption provisions. A good example is the
express preemption provision and the saving clause in the National
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FederalPreemption of State Tort Claims
Traffic and Motor Vehicles Safety Act of 1966, featured in the Geier case."
The express preemption provision reads as follows:
"Whenever a Federal motor vehicle safety standard established
under this subchapter is in effect, no State or political subdivision of
a State shall have any authority either to establish, or continue in
effect, with respect to any motor vehicle or item of motor vehicle
equipment, any safety standard applicable to the same aspect of
performance of such vehicle or item of equipment which is not
identical to the Federal standard.'94
The saving clause provides: "Compliance with any Federal motor
vehicle safety standard issued under this subchagter does not exempt
any person from any liability under common law.'
These provisions appear fairly straightforward on their face. They are
hardly over-subtle, nor do they appear to set forth a complicated scheme
of shared federal-state regulation in this area. Yet, the National Traffic
and Motor Vehicle Safety Act of 1966 has produced a significant amount
of preemption litigation, culminating thus far in the almost evenly split
five-to-four Supreme Court decision in Geier.96
Similarly, note the express preemption provision in the Employee
Retirement Income Security Act (ERISA), stating reasonably clearly and
unambiguously that the Act "supercede[s] any and all State laws insofar
as they may now or hereafter relate to any employee benefit plan."97
Nevertheless, in the slightly more than two and a half decades since
ERISA has been enacted, the U.S. Supreme Court has issued written
opinions in at least sixteen ERISA preemption cases. 9" In a 1992 Supreme
" Geier v. Am. Honda Motor Co., 529 U.S. 861, 895 n.10 (2000) (Stevens, J., dissenting).
, Id. at 895 (Stevens, J., dissenting) (quoting National Traffic and Motor Vehicle Safety
Act of 1966, 15 U.S.C. § 1392(d)) (repealed 1994) (codified at 49 U.S.C. § 30103 (b)(1) (1994)).
Id. (Stevens, J., dissenting) (quoting National Traffic and Motor Vehicle Safety Act of
1966, 15 U.S.C. § 1397(k)) (repealed 1994) (codified at 49 U.S.C. § 30103 (e) (1994)).
"
Id. at 861.
' 29 U.S.C. § 1144(a) (1994).
" UNUM Life Ins. Co. of Am. v. Ward, 526 U.S. 358 (1999); Boggs v. Boggs, 520 U.S.
833 (1997); DeBuono v. NYSA-ILA Med. and Clinical Servs. Fund, 520 U.S. 806 (1997); Cal.
Div. of Labor Standards Enforcement v. Dillingham Constr., N.A., Inc., 519 U.S. 316 (1997);
N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645
(1995); John Hancock Mut. Life Ins. Co. v. Harris Trust & Savs. Bank, 510 U.S. 86 (1993);
District of Columbia v. Greater Wash. Bd. of Trade, 506 U.S. 125 (1992); Ingersoll-Rand Co.
v. McClendon, 498 U.S. 133 (1990); FMC Corp. v. Holliday, 498 U.S. 52 (1990);
Massachusetts v. Morash, 490 U.S. 107 (1989); Mackey v. Lanier Collection Agency & Serv.,
Inc., 486 U.S. 825 (1988); Fort Halifax Packing Co. v. Coyne, 482 U.S. 1 (1987); Pilot Life Ins.
Co. v. Dedeaux, 481 U.S. 41 (1987); Metro. Life Ins. Co. v. Massachusetts, 471 U.S. 724
(1985); Shaw v. Delta Air Lines, Inc., 463 U.S. 85 (1983); Alessi v. Raybestos-Manhattan, Inc.,
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Court case, Justice Stevens estimated that there had been at that time
approximately 2,800 formal judicial opinions rendered on ERISA
preemption. 99 A recent Westlaw search produced more than 5,400
cases.
This proliferation of cases fairly raises the question of how
much more detailed and specific and exhaustive these provisions would
need to be before they achieve sufficient clarity to generate the suggested
benefits of a bright-line rule.
Second, a bright-line rule may represent an impermissible intrusion
into legislative power. Even assuming that a clear and unambiguous
statement of preemptive effect is achievable with enough effort, it may
be inappropriate for the Court to adopt a rule of constitutional
interpretation that in effect requires the federal legislature to expend
such resources in the designing and drafting of its own legislative
product. It may also be constitutionally inappropriate for the judicial
branch to in effect withhold the recognition and enforcement of an
important power, preemption of conflicting state laws, clearly granted to
the federal legislative branch in the Constitution, until the legislative
branch succeeds in passing legislation that contains express preemption
language that meets the court's standard as sufficiently clear and
unambiguous.
Third, the bright-line rule hampers political compromise. As a
practical matter, the Court would be ignoring political reality by
adopting a bright-line rule that requires Congress to decide upon a clear
and unambiguous statement regarding the intended preemptive effect of
the legislation. Ambiguity is occasionally an acceptable product of
difficult negotiations and hard compromise. In some circumstances,
perhaps many, a deal would likely not be completed if the parties were
required to explicitly agree in detail and in writing on every point
involved in the negotiations. A bright-line preemption requirement
leaves little, or at least less, room for soft agreement, face saving, and,
sometimes, outright mutual denial of the troublesome issue. Each of
these things can sometimes be useful as a means of achieving difficult
compromise. Moreover, it is almost always the case with legislation that
451 U.S. 504 (1981).
" District of Columbia v. Greater Wash. Bd. of Trade, 506 U.S. at 135 (Stevens, J.,
dissenting) ("A recent LEXIS search indicates that there are now over 2,800 judicial
opinions addressing ERISA pre-emption.").
1" On March 20, 2001, the author performed this search by entering the search term
"ERISA w/p preempt!" into the Westlaw ALLFEDS database. Professor Catherine L. Fisk
reports having produced 3330 cases with an identical search in the same database
conducted in 1996. Catherine Fisk, The Last Article About the Languageof ERISA Preemption?
A Case Study of the Failureof Textualism, 33 HARV. J. ON LEGIS. 35, n.106 (1996).
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FederalPreemption ofState Tort Claims
the operative language is crafted and negotiated by agents on behalf of
principals; the requirement that lawmakers produce a fully detailed,
clear, and unambiguous statement makes it much more difficult for the
representatives to sell a difficult and carefully crafted compromise back
to their constituency.
Fourth, the bright-line rule would permit the existence of
unanticipated conflicts between federal and state law. Given the
extraordinary complexity of some of the matters regulated by the federal
government, and the fact that potentially conflicting state laws or
regulations may not be created or even imagined until years after the
relevant federal legislation has been passed, it is likely that the federal
actor will enact defective preemption provisions a fair amount of the
time. Specifically, Congress will enact preemption provisions that, by
their express terms, fail to prevent state action making it impossible for
the regulated party to comply with both the state and the federal law.
Because the courts will not preempt the state law in the absence of
express federal permission, the regulated party is simply trapped
between violating state law or violating federal law.
Given the inevitability of such unanticipated conflicts, it seems
unacceptable for the courts to force the regulated party to simply choose
their poison - state or federal consequences for violation of the standard
- and then exercise their political influence in hope that one or the other
sovereign will correct the situation. In fact, one can make a strong due
process argument that it is not constitutionally permissible for the
federal and a state government to have laws that regulate the same
activity concurrently but both of which can not possibly be complied
with by persons subject to these laws.
If such conflicts are indeed considered constitutionally inappropriate
and it is determined that, at a minimum, the courts should not craft a
preemption doctrine that permits functional impossibility conflicts to
exist, irrespective of the clarity of the preemption language, then a
completely straightforward, bright-line rule of preemption would not be
possible. At the least, the doctrine would have to be re-crafted as
follows:
A federal Act will be deemed not to preempt a State law regulating the
same activity unless:
(1) the federal Act contains express provisions which state clearly
and unambiguously that such a State law is intended to be
preempted; or
(2) it is not possible for a person engaging in the regulated activity
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to comply with both the federal law and the State law.
This hypothetical language actually represents the strongest version of
the position suggested by the dissent in Geier,10' and the position that the
majority in the case suggests very clearly is underpinning the dissent. 1°2
This language is essentially what the preemption doctrine would look
like if the frustration-of-purposes branch of conflict preemption were
eliminated and field preemption were confined to express field
preemption only.
While this version of preemption doctrine is not as elegant as the
single bright-line rule alone, it might still be expected to generate the
potential benefits that were associated with a bright-line approach.
Correspondingly, it is also likely to suffer from the same problems as the
bright-line approach: (1) an overly optimistic implicit assumption about
the achievability of a clear and unambiguous statement of preemptive
effect; (2) an inappropriate demand on legislative resources; and (3) the
elimination of a potentially valuable tool of legislative compromise.
Moreover, such an approach to preemption jurisprudence must face a
slightly different version of the fourth challenge to the bright-line rule
identified above. Given the extraordinary complexity of some of the
matters regulated by the federal government, and the fact that
potentially conflicting state laws or regulations may not be created or
imagined until years after enactment of the legislation, it is likely that the
federal actor will enact preemption provisions that, by their express
terms, fail to prevent state actions that frustrate the goals of the federal
act.
For example, suppose that some years after passage of the National
Labor Relations Act, a state passes a law which denies unemployment
benefits to those who file an unfair labor practice charge with the
National Labor Relations Board. The NLRA does not have an express
preemption provision that covers this situation, though it is fairly clear
that one of the objectives of the Act is to encourage the filing of such
claims.
Even a modified bright-line approach would create a system
that allows the states to frustrate federal goals in this way until the
federal actor crafts its preemption language just right. It is unacceptable
to create a system that essentially requires Congress or a federal agency
to constantly monitor potential state law obstacles to legitimate federal
'0"
'
'
(1967).
Geier v. Am. Honda Motor Co., 529 U.S. 861, 886 (2000).
Id. at 874. See supra text accompanying note 85.
These are, in summary, the facts of Nash v. Florida IndustrialCommission, 389 U.S. 235
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objectives and amend the relevant preemption language accordingly.
Fifth, if the purpose of eliminating the frustration-of-purpose branch
of conflict preemption is to significantly narrow the preemptive effect of
federal law, and it seems pretty clear that it is, the bright-line approach
may actually have exactly the converse effect. The reason is that
Congress, faced with the elimination of default frustration-of-purposes
conflict preemption, will respond by enacting additional, and more
comprehensive, express preemption provisions. At the least, Congress
could effectively and easily reverse any attempt by the judicial branch to
eliminate the frustration-of-purpose branch of conflict preemption by
simply routinely including in federal legislation an express preemption
provision that reads, in part, that state requirements are preempted if
"the requirement is an obstacle to accomplishing and carrying out this
Act or a regulation prescribed pursuant to this Act." In fact, this kind of
preemption provision is not wholly hypothetical, the quoted language
comes directly from the Hazardous Materials Transportation Act.10
C. A PresumptionAgainst Preemption
A second approach to resolving questions of preemption is to adopt a
presumption against preemption. It is frequently asserted, not the least
by Justices of the Supreme Court, that there should, or that in fact there
does, exist a presumption against federal preemption, particularly in
those cases in which the state law at issue falls within the historic powers
of the states to regulate general health, safety and welfare 05 Yet, many
of the factors that weigh against a bright-line preemption rule also
militate against the adoption of a presumption against preemption.
At the start, it should be noted that there is no textual support
whatsoever in the Supremacy Clause for any such presumption against
federal preemption. Moreover, so far as it can be determined from the
49 U.S.C. § 5125(a)(2).
" California v. ARC Am. Corp., 490 U.S. 93, 101 (1989) ("When Congress legislates in a
field traditionally occupied by the States, 'we start with the assumption that the historic
police powers of the States were not to be superceded by the Federal Act unless that was
the clear and manifest purpose of Congress."' (quoting Rice v. Santa Fe Elevator Corp., 331
U.S. 218, 230 (1947))). See also Geier, 529 U.S. at 894 (Stevens, J., dissenting):
Because of the role of the States as separate sovereigns in our federal system, we
have long presumed that state laws - particularly those, such as the provision of
tort remedies to compensate for personal injuries, that are within the scope of the
States's historic police powers - are not to be pre-empted by a federal statute
unless it is the clear and manifest purpose of Congress to do so.
Id. (citations omitted).
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cases and the available literature, there appears to be no significant
support in constitutional history for the conclusion that the framers
intended any such presumption to be read into Article VI, clause 2. °6
Second, in the context of a case being tried before a jury, it is always
difficult to know just what effect a rebuttable presumption will have, or
has had, on the jury's verdict. In the trial context, however, one can
assume that some persuasive impact is achieved by the judge formally
charging the jury with regard to the presumption as part of the final jury
instructions. In the appellate context, with sophisticated decision makers
balancing a myriad of relevant factors, it is hard to say with any
confidence, perhaps even for the appellate judges themselves, just what
impact the suggested existence of a rebuttable presumption has on the
final judgment.
Thus, in cases in which the majority finds against preemption, the
presumption is often cited.1 7 In cases like Geier,' 8 where the majority
finds for preemption, the dissent, if there is one, accuses the majority of
ignoring the presumption.0 The majority typically counters that the
presumption was not ignored, but it was simply the case that, on
balance, the majority concluded that the presumption was effectively
overcome in this particular instance.1 At the least, it can be said that the
continued presence of the presumption against preemption has not
seemed to stop a generally perceived trend toward broader federal
preemption decisions by the courts in recent years.
Third, and perhaps most importantly, the maintenance of a
presumption against preemption puts the courts into a position in which
they are forced to treat essentially similar cases in very different
" See generally S. Candice Hoke, Transcending Conventional Supremacy: A Reconstruction
of the Supremacy Clause, 24 CONN. L. REV. 829 (1992) (stating that Supremacy Clause was
less nationalistic compromise adopted by Constitutional Convention). But see Caleb
Nelson, supra note 25, at 251 (stating that Supremacy Clause forecloses possibility that
subsequently enacted state statute could prevent application of federal law).
10
See, e.g., Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996); Cipollone v. Liggett Group,
Inc., 505 U.S. 504, 518, 523 (1992); Fort Halifax Packing Co., Inc. v. Coyne, 482 U.S. 1, 21
(1987); Hillsborough County, Florida v. Automated Med. Labs., Inc., 471 U.S. 707, 715-16
(1985).
1" Geier, 529 U.S. at 861.
1" Id. at 894, 906-07 (Stevens, J., dissenting) ("Under 'ordinary experience-proved
principles of conflict pre-emption,'... therefore, the presumption against pre-emption
should control. Instead, the Court simply ignores the presumption, preferring instead to
put the burden on petitioners to show that their tort claim would not frustrate the
Secretary's purposes.").
11o Id. at 883 (citations omitted) ("And in so concluding, we do not 'put the burden' of
proving preemption on the petitioners. We simply find unpersuasive their arguments
attempting to undermine the Government's demonstration of actual conflict.")
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manners. For example, consider a hypothetical federal act that requires
certain specifications for all tires sold on new pickup trucks and vans,
but not passenger cars. Imagine two versions of this hypothetical
regulation.
In the first version of this tire regulation, there is an express provision
that clearly preempts all state tort claims that are based on the theory
that regulated vehicles are negligently designed for failure to have
installed tires that exceed the federal specifications. However, it is not
clear from the language of the act whether heavy sports utility vehicles
sold primarily for use as passenger cars are subject to the regulation. In
short, this version of the act leaves ambiguous whether SUVs fall under
its purview and the preemption safe harbor provided therein.
In the second version of this tire regulation, the ambiguities are
reversed. Here, the language of the act expressly provides that sports
utility vehicles are considered trucks and not passenger cars, and
therefore are covered by the tire regulations. However, the act contains
an express preemption provision that leaves uncertain the status of state
tort claims that are based on the manufacturer's failure to install tires
that exceed the federal requirements. In short, this version of the act
makes it clear that SUVs fall under its regulation but leaves ambiguous
whether the act provides a safe harbor against state tort claims.
Assume then that a state tort action is brought against a manufacturer
on the theory that the tires installed on a particular new sports utility
vehicle failed to have some quality or characteristic not required by the
federal act. Under the first regulation, the question of whether the claim
was preempted would most likely be viewed as a straightforward issue
of statutory interpretation. The court would presumably approach this
issue as it would any other interpretive problem posed by the statutory
language, that is, without adopting presumptions one way or the other.
Under the second regulation, however, the case is very likely to be
viewed as an issue of preemption to which the court might, assuming
that it has an important practical effect, bring to bear the traditional
presumption against preemption.
This result seems inappropriate given that under both versions of the
hypothetical, the case in question poses precisely the same issue and
carries exactly the same stakes: whether or not a sports utility vehicleowner plaintiff can bring a state tort action. Thus, the court is in the
position of making essentially the same practical judgment. Preemption
jurisprudence to date has offered no justification for treating the second
hypothetical case in such a dramatically different doctrinal fashion than
the first.
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CONCLUSION
On balance, the preceding analysis suggests that the elimination of the
frustration-of-purposes branch of conflict preemption is probably
unworkable, undesirable, and ultimately unlikely to effect much
narrowing of federal preemption. In addition, the analysis strongly
suggests the undesirability of the frequently cited rule that a
presumption against preemption should be adopted by the court, at least
in those cases in which the state law at issue falls within the historic
police powers of the states to regulate general health, safety, and welfare.
Even further, the analysis suggests that it is hard to develop a convincing
rationale for the formal adoption by the courts of any preemption
specific doctrine, be it special bright-line requirements in the face of a
saving clause, modified bright-line requirements, or presumptions one
way or the other.
It is a mistake for courts to conceive of their work in the preemption
area as thrusting them into the heart of federalism policy and debate.
Indeed, courts should not be engaging in case-specific balancing of
federal and state interests in order to determine the proper scope of
federal act preemption in each instance. This way of thinking only
results in a jurisprudence in which courts take on the task in every case
of rethinking and redesigning anew a fundamental question of federalstate relations that has already been clearly and unambiguously decided
by the federal constitution itself. Such a conception has inevitably
resulted in the present vagueness, indeterminacy, and occasional
incoherence of preemption jurisprudence.
A far better approach would be for courts to recognize the clear
mandate of federal supremacy set forth in Article VI, clause 2. From this
full recognition would come the logical, and quite simple, doctrinal
principle that a federal act supercedes all state actions that the federal
authority intended be preempted by passage of the act. The court's task
in determining the exact scope and content of the federal authority's
intent with respect to preemption should be no different than its
determination of any other issue of statutory interpretation under the
act. The debate, and the resolution, of a preemption question should call
upon and employ the full panoply of traditional tools and techniques of
statutory interpretation, nothing more and nothing less. At the very
least, any proposal for alteration of this approach in the preemption area
should bear a heavy burden of persuasion.